The first consideration in any negligence action is whether the claimant was owed a duty of care by the defendant.
Despite the fact that it may appear from the discussion later in this article that there are circumstances when a duty has been limited or excluded by the courts, there are very many situations in modern life when a duty of care is owed. The legal basis for the existence of such duties is discussed in the next article, but some examples of ‘duty situations’ are described below.
These instances are based on established lines of precedent, but that does not mean that it may not be possible for a court to distinguish the cases and find that no duty is owed in certain circumstances. Thus, in general, motorists and other road users owe a duty to one another in relation to physical injuries. Doctors and other health care professionals owe a duty of care to patients. Parents owe a duty to their children, as do teachers who are temporarily in loco parentis (acting in the place of parents). Manufacturers owe a duty to consumers of their products. Employers owe various duties of care at common law to their employees.
The test for determining the existence
The modern approach to deciding whether a duty of care case exists involves applying one or more of three tests based on:
- (a) foresight;
- (b) proximity;
- (c) considerations of justice and reasonableness in imposing the duty (Caparo v Dickman (1990)).
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Duty of Care Meaning Foresight
In Donoghue v Stevenson (1932), the notion of foresight of the claimant as a member of a group who is likely to suffer harm as a result of the defendant’s acts or omissions in notional of importance as a deciding factor for liability. However, although it is possible to find cases in which it is argued purely on the question of foresight that a duty of care exists.
it is too simplistic to suggest that foresight or ‘reasonable contemplation of harm’ alone is the test for the existence of a duty. It should be regarded as simply one aspect to be weighed in the balance. Many of the cases cannot be explained by reference.
only to foresight. Indeed, in Marc V Rich & Co v British Marine Co Ltd (1996), the House of Lords took the view that, whatever the nature of the harm, the court should consider foresight, proximity, and whether in all the circumstances it is fair, just and reasonable to impose a duty.
It is still possible to find decisions today which are arrived at by using the simple test of reasonable foresight. For example, in Topp v London Country Bus (South West) Ltd (1993), the claimant was unsuccessful because he was unable to establish that the defendant ought reasonably to have foreseen that a joyrider would have stolen the bus that his employee left unattended in a layby. His wife was killed through the negligence of the unidentified joy-rider when he collided with her and knocked her off her bicycle.
Margereson v JW Roberts Ltd, Hancock v Same (1996) (a case which was also concerned with causation), it was held that the owner of an asbestos factory should reasonably have foreseen that child who played near the factory might develop pulmonary injury through dust contamination.
However, there were, and still are, a number of ‘grey areas’ in which the extent of liability and the scope of the duty of care are less clear.
Duty of Care Definition Proximity
Closely related to foresight is the notion of ‘proximity’. This concept was considered in Donoghue v Stevenson itself and was mentioned in the early cases of negligence. In some cases, proximity has become a more important consideration than foresight as a device for controlling the existence and scope of the duty of care in personal injury cases. However, foresight will often be sufficient.
In Yuen Kun Yeu v AG of Hong Kong (1978), Lord Keith referred to proximity as a synonym for foreseeability on the one hand, and on the other as referring to the whole concept of the relationship between the claimant and the defendant as described in Donoghue v Stevenson by Lord Atkin.
Proximity plays an important part in the reasoning in many of the cases concerning the extent of liability for economic loss caused by negligent misstatement. It has also been regarded as important in relation to the scope of the duty in omissions rather than positive acts.
In the Canadian case of Canadian National Railway v Norsk Pacific Steamship Co (1992), the majority of judges in the Canadian Court went on to reject a general test of proximity as a test for liability applicable throughout the law of negligence. In effect, the concept is but one of the factors which may apply in the process of judicial reasoning, whereby judges are enabled to arrive at the decisions which they believe to be just in individual cases.
Proximity has proved very important in determining whether a duty of care exists in nervous shock cases. Time will tell whether the operation of the Human Rights Act 1998 will lead to the development of more duties in tort.